BYDFi Futures Services Agreement
Risk Warning: You will find Stock futures in the BYDFi Futures services/products. Stock futures are built on a composite of tokenized stock indices already circulating in the market. However, Stock futures are not a security and does not represent actual ownership of the underlying stocks or related stock tokens or indices. Stock futures does not give you any dividends, interest, voting rights, shareholder privileges, or rights offerings (including but not limited to share splits, spin-offs, or subscription rights) of any underlying stocks or related stock tokens or indices. Stock futures are neither insured, approved nor guaranteed by any government or agency. BYDFi is neither the issuer nor the distributor of the underlying stock or related stock tokens or indices.Digital asset prices are subject to fluctuation and may experience significant volatility. Investors are advised to only allocate funds they can afford to lose. The value of any investment may be impacted, and there is a possibility that financial objectives may not be met, nor the principal investment recovered. Independent financial advice should always be sought, and personal financial experience and standing carefully considered. Past performance is not a reliable indicator of future results. BYDFi and/or its Affiliates accepts no liability for any potential losses incurred. Nothing contained herein should be construed as financial advice.BYDFi allows you to trade cryptocurrency futures. Futures are leveraged products, which are complex and may not be suitable for inexperienced investors. This Futures Services Agreement (this “Agreement”) shall apply to BYDFi’s Futures Trading Services and all Futures Accounts opened and maintained with BYDFi. Your access to and use of the Futures Trading Services shall constitute your agreement to the terms of this Agreement.This Agreement is supplemental to and shall be read together BYDFi Terms of Use (“Terms of Use”) and the provisions set out therein shall continue to apply. All terms and clauses contained in the Terms of Use (except to the extent expressly modified herein) are incorporated by reference and have the same force and effect as if set out in their entirety in this Agreement. This Agreement shall constitute Product Terms.In the event of any conflict or inconsistency between any provision of this Agreement and the Terms of Use, this Agreement shall prevail with respect to the services contemplated hereunder, unless expressly stated otherwise. We may make changes to provisions of this Agreement at any time in accordance with the Terms of Use.BYDFi reserves the right to alter, revise, modify, and/or amend this Agreement at any time in its discretion. Any such amendments will take effect immediately upon being published on the Platform. Your continued access and use of the Platform and the Futures Trading Services following any amendments to this Agreement shall indicate your acceptance of such amendments. If you do not agree to any such amendments, you should terminate your usage of Futures Trading Services and cancel your Futures Account.Users resident in certain jurisdictions may be onboarded subject to terms and conditions imposed by the relevant local entity, in which case such terms shall apply to govern the Futures Trading Services in place of this Agreement.Risk DisclosureFutures trading is highly leveraged. The amount you may lose is potentially unlimited and can exceed the amount which you originally deposited with us. You should seek advice from an independent and licensed financial advisor before you decide to trade.By using the Platform, you acknowledge that you have understood and accepted all the risks associated with Futures, in particular:(a) Cryptocurrency risk. Cryptocurrency is a highly volatile asset class and is based on decentralized monetary protocols which are still in experimental stage and may change at any time.(b) Market risk. You may suffer a loss as a result of a position in Futures moving against you. If you hold a long position and the cryptocurrency price declines or if you hold a short position and the cryptocurrency price increases, you can lose all of your cryptocurrency or legal tender deposit.(c) Credit risk. One or more of your counterparties have deposited insufficient collateral into their account, such that you may not receive some or all of the cryptocurrency or legal tender they owe you.(d) Liquidity risk. You may suffer a loss because you cannot close out a Futures position due to a lack of demand to take the other side of that trade.(e) Platform parameters risk. You may suffer a loss because we have had to change parameters on the Platform, such as the margin requirements.(f) Operational risk. This is the risk that you suffer a loss due to a malfunction of the Platform, for example resulting from scheduled or unscheduled downtimes, matching system failure, database failure, cryptocurrency transfer or storage failure, failure or malfunction of the Application Programming Interface (API), hacker attacks, or other failure or malfunction.(g) Regulatory risk. This is the risk that you suffer a loss because we have to restrict or terminate elements of our service in response to regulatory action.1. Definitions1.1 In these Terms, unless context otherwise requires, the following words and expressions shall have the following meanings respectively ascribed to them:“Coin-M Futures” means futures contracts that are quoted, margined and settled in Digital Assets other than stablecoins.“Funding Fees” means periodic payments that apply to Perpetual Futures Contracts that are either paid to you or owed by you depending on whether you are holding a long or short position in the relevant Digital Assets and are based on the nominal value of the positions and the applicable Funding Rate.“Funding Rate” means the rate used to determine the applicable Funding Fees payable in respect of Perpetual Futures Contracts.“Funding Times” means, on any day, the times falling at each 8-hour interval or as may be amended or varied by BYDFi from time to time.“Futures” means USDT-M Futures, Coin-M Futures, USDC-M Futures or any other futures contracts that BYDFi may allow to be traded on the Platform.“Futures Account” means an account maintained by you for the purpose of receiving the BYDFi Futures Trading Services. Each Sub-Account that is enabled for Futures Trading Services will have a separate Futures Account.“Futures Trading Services” means all services relating to Transactions in Futures and use of any trading bot.“Initial Margin” in respect of a Transaction, shall be the minimum amount of Margin that BYDFi may, from time to time in its sole discretion, determine is required to be deposited in your Futures Account in order to open a leveraged position for that Transaction.“Liquidation Price” means, in relation to an open position maintained in Futures, the price at which liquidation occurs, as calculated by BYDFi in accordance with the relevant liquidation price formula. For the avoidance of doubt, the Liquidation Price as quoted by BYDFi on the Platform is for reference only and shall not be binding on BYDFi.“Loss” means any and all loss, damage, costs, charges and/or expenses, including, but not limited to, legal fees on a full indemnity basis, cost of funding, losses or costs incurred as a result of the terminating, liquidating or re-establishing of any hedge or related trading position, loss of profit, loss of revenue, loss of opportunity, consequential, unforeseeable, special or indirect damages or expenses.“Maintenance Margin” in respect of a Transaction, shall be the amount of Margin (which is additional to Initial Margin) that BYDFi may from time to time in its sole discretion determine to be required to keep the relevant leveraged position in respect of the applicable Transactions open.“Manifest Error” means any error, omission or misquote which is manifest or palpable, including a misquote by any representative of BYDFi taking into account the current market and currently advertised quotes, or any error or lack of clarity of any information, source, commentator, official, official result or pronunciation. The fact that you may have entered into, or refrained from entering into, a corresponding financial commitment, contract or trade in reliance on a Transaction entered into through the Futures Trading Services (or that you have suffered or may suffer any loss whether direct, indirect, consequential or otherwise) is deemed irrelevant as a factor and shall not be taken into account in determining whether a situation amounts to a Manifest Error.“Margin” in respect of Transactions, means any Digital Assets of the type that BYDFi has specified it accepts to satisfy Margin Requirements, that are deposited with or held by or on behalf of BYDFi in your Futures Account as security or credit support for your obligations under such Transactions.“Margin Balance” means the sum, from time to time (as determined by BYDFi in its sole discretion) of: (i) Margin held in your Futures Account; and (ii) any Unrealised P/L connected to your Futures Account. Information relating to your Margin Balance from time to time is made available through the Platform.“Margin Call” means the BYDFi requesting the user to top up any shortfall of Margin in the Futures Account in order to satisfy Initial Margin and/or Maintenance Margin requirements from time to time.“Margin Requirements” means any Initial Margin and/or Maintenance Margin required to open and/or maintain a position with respect to a Transaction, as specified by BYDFi in its sole discretion from time to time.“Mark Price” means the fair market value of the relevant Futures as calculated pursuant to the methodology set out in the relevant Futures Trading Rules.“Order” means an electronic order for Futures transmitted by you or on your behalf which is accepted by BYDFi in relation to the Futures Trading Services.“Perpetual Futures Contracts” means Coin-M Futures, USDT-M Futures or USDC-M Futures or without a set expiry date. Perpetual Futures Contracts can be held indefinitely with no expiry date.“Transaction” means any transaction in respect of Futures that BYDFi permits to be carried out with respect to your Futures Account.“Unrealized P/L” means profits that have not yet been realized minus the losses that have not yet been realized, in each case with respect to your open Transactions before closure or expiry.“USDC-M Futures” means futures contracts, other than Coin-M Futures, that are quoted, margined and settled in USD Coin (USDC). USDC-M Futures are linear (rather than inverse) futures products.“USDT-M Futures” means futures contracts, other than Coin-M Futures, that are quoted, margined and settled in Tether (USDT). USDT-M Futures are linear (rather than inverse) futures products.2. Futures Trading Services2.1 By accessing your Futures Account and/or using the Futures Trading Services, you agree to be bound by the terms of this Agreement together with the rules that apply in relation to the Futures Trading Services provided by BYDFi from time to time (collectively, the “Futures Trading Rules''), which shall include, without limitation, each of the following:(a) the trading rules of Coin-M Futures, USDT-M Futures and USDC-M Futures, as may be updated from time to time;(b) the provisions regarding leverage and margining of USDT-M Futures and USDC-M Futures, as available on the Platform or as notified by BYDFi from time to time;(c) the provisions regarding leverage and margining of Coin-M Futures, as available on the Platform or as notified by BYDFi from time to time;(d) the provisions regarding funding rates, as may be updated from time to time;(e) the provisions regarding liquidation, as available on the Platform or as notified by BYDFi from time to time;(f) the applicable fee schedules, as available on the Platform or as notified by BYDFi from time to time; and(g) any other rules, terms of service, and/or trading protocols that BYDFi may from time to time in its sole and absolute discretion determine shall form part of this Agreement.2.2 You acknowledge and agree that the Futures Trading Rules shall supplement and form part of this Agreement. In the event of any conflict between the provisions of any of the Futures Trading Rules and the provisions of this Agreement, the provisions contained in such Futures Trading Rules shall prevail.2.3 The Futures Trading Rules may be amended from time to time, including, but not limited to, amending the trading pairs available and the leverage available for particular Transactions.2.4 BYDFi may change, suspend, terminate, restrict or discontinue all or any of the Futures Trading Services or any information, features or functions available in the Platform, and may delist any Digital Asset trading pairs from the Platform temporarily or permanently, at any time in its sole and absolute discretion, without providing any reason or any notice thereof.2.5 Nothing contained on the Platform is to be construed as an offer, solicitation or a recommendation to enter into any transaction to create contractual obligations. You acknowledge that BYDFi offered no advice with respect to your access or use of the Platform including, without limitation, advice relating to the suitability or profitability of any security, investment or transaction. You also acknowledge that the Platform provides general information, which shall not be construed as financial advice, or as an offer, solicitation or recommendation of securities or other financial products from BYDFi. Such information is not personalized or tailored to reflect your particular investment objectives, financial situation or needs. You acknowledge that any transactions or products mentioned herein may not be appropriate for all investors and that you should take steps to ensure that, before entering into any transaction, you fully understand the transaction and have made an independent assessment of the appropriateness of the transaction in the light of your own objectives and circumstances.2.6 You acknowledge that there are legal requirements in various jurisdictions which may restrict the products and services under the Futures Trading Services that can be lawfully offered. Some products and services and certain functionality within the Platform may not be available or may be restricted in certain jurisdictions or regions or to certain users. You shall be responsible for understanding and observing any restrictions and/or requirements imposed with respect to the access to and use of the Platform and the Futures Trading Services in each jurisdiction from which the Platform and the Futures Trading Services are accessed by you. We reserve the right to change, modify, or impose additional restrictions with respect to access to and use of the Platform and/or the Futures Trading Services from time to time, at our sole discretion, without notice.3. Orders3.1 Users should provide instructions with respect to a Transaction or close out any open position with respect to a Transaction by placing a relevant Order through the Platform and having such Order executed. You agree to comply with the trading rules set out therein when placing any Order.3.2 Nothing in this Agreement shall oblige BYDFi to accept any Order or enter into any Transaction, and we may refuse to enter into any Transaction, accept or otherwise act on any Order without giving any reason or notice.3.3 BYDFi shall be entitled to rely on any Order which it reasonably believes to have been placed on your behalf, and we may deem that such Order has been duly authorized by you. If any Order is ambiguous or inconsistent with any other Order, BYDFi shall be entitled to rely on and act upon such Order in any manner based on its reasonable interpretation.3.4 BYDFi retains the right to refuse to act in accordance with any Order which purports to dispose of or deal with any Digital Assets which are not held in any Account and/or Futures Account.3.5 BYDFi shall not be liable for any Loss or other liability whatsoever incurred by you or any third party which arises from or in connection with any failure by BYDFi to comply with any of your Orders or from any exercise or failure to exercise by BYDFi of any discretion, power or authority conferred upon us under this Agreement. Further, BYDFi shall not be liable for any Loss or other liability incurred by you or any third party which arises from or in connection with any failure or delay in the transmission of, or any wrongful interception of, any Order submitted through any equipment or system, including any equipment or system owned and/or operated by or on behalf of BYDFi.3.6 You acknowledge and consent to the right of BYDFi to aggregate any Order with your other Orders and/or the Orders of other clients of the Futures Trading Services. The allotment or distribution of any Digital Assets pursuant to such aggregation shall be at our sole and absolute discretion. You further acknowledge and agree that we may enter into Transactions as principal and, may also take such actions as may be reasonably required in order to limit liability and/or exposure under any such Transaction.3.7 Users may enter into Transactions that reference a cryptocurrency price index designed to track the performance of a basket of underlying Digital Assets that form the constituents of the index as the underlying (a “Futures Index”, and such transactions as “Futures Index Transactions”). You acknowledge and agree that Futures Index Transactions are intended to track the performance of the underlying Futures Index, instead of the individual Digital Assets that make up the constituents of such index. Past performance of a Futures Index is not an indication or guarantee of future results. We make no assurance to the effect that any Futures Index Transactions will accurately track the value of the referenced Futures Index or provide positive investment returns. You acknowledge that the inclusion of a particular Digital Asset within a Futures Index shall neither constitute a recommendation by BYDFi to buy, sell, or hold such Digital Asset or enter into any Transaction in relation to such Digital Asset, nor shall it constitute investment advice. The price of a Futures Index is calculated based on the spot prices of the individual Digital Assets that constitute such index as observed on the BYDFi spot exchange. Before entering into a Futures Index Transaction, you shall ensure that: (i) you have read and understood materials available on the Platform relating to the constituents of the relevant Futures Index, the formula for calculating the value of the Futures Index, any applicable rebalancing procedure and the circumstances in which the constituents of the Futures Index may change, and (ii) you have carefully considered the risks associated with entering into such Futures Index Transaction. BYDFi may rely on information obtained from third parties when calculating the value of a Futures Index. You acknowledge that BYDFi does not guarantee the accuracy or completeness of any information obtained from third parties, does not warrant that any such information is up to date as at the time obtained and shall not be liable for the content of such third-party information or any discrepancies or errors contained therein or any losses flowing from the use or reliance thereon.3.8 We may rely on information and/or data obtained from third parties and may also make available third-party indices and/or other market data through the Platform, in each case for information purposes only. You acknowledge and agree that BYDFi: (i) does not guarantee the accuracy, completeness or availability of any information or data provided by third parties (“Third Party Data”); (ii) does not warrant that any Third Party Data is up to date as at the time obtained; and (iii) shall not be liable for the content of any Third Party Data or any discrepancies or errors contained therein or any losses flowing from the use or reliance thereon. Any use or reliance on any Third Party Data shall be at your sole risk and discretion. BYDFi does not endorse any third-party index that is made accessible through the Platform and does not guarantee the outcome of any use thereof or reliance thereon.3.9 BYDFi may implement certain trading risk controls to the Futures Trading Services from time to time based on certain thresholds and criteria, in order to protect your rights and interests. Such risk control measures may include without limit, (i) implementing a “Reduce Only” restriction in certain circumstances, (ii) adjustment of the risk matrix in accordance with market situation and (iii) prohibiting transfers, trading, and other operations for high-risk users. If a “Reduce Only” restriction is implemented, you will only be allowed to enter into risk-reducing transactions or to close out existing open positions, and you will be restricted from increasing your positions or opening new positions.4. Margin4.1 All Margin shall be held subject to our general rights under Applicable Law.4.2 You shall deposit and maintain in your Futures Account Margin in such form and amounts, at such times and in respect of such Futures Account as BYDFi may from time to time in its sole and absolute discretion require, whether or not such requirement is identical to or reflects or is greater than applicable collateral or margin requirements of any governmental body or self-regulatory organization in any jurisdiction which is required to be maintained by BYDFi and/or you. The value of any Margin shall be determined by BYDFi in its sole and absolute discretion.4.3 A list of approved Digital Assets to be eligible as Margin will be prescribed by BYDFi and certain Digital Assets may only be valued as Margin on a discounted basis. BYDFi may, in its sole and absolute discretion, amend the approved list from time to time without notice.4.4 You may choose to satisfy Initial Margin and Maintenance Margin requirements on your Futures Account either on an isolated basis (“isolated margin mode”) or across all open positions in a particular contract type (“cross margin mode”). If you select “isolated margin mode”, an independent Margin Balance will apply to each open position and only Digital Assets allocated as Margin to a particular open position will be utilized in the event of any liquidation or close-out. If you select “cross margin mode”, all open positions in the same contract type recorded against a Futures Account will have a single margin balance and will have recourse to the same pool of Digital Assets provided by you to satisfy Initial Margin and Maintenance Margin requirements. For the avoidance of doubt, if you have a number of different Sub-Accounts, each Sub-Account shall be treated entirely independently from any other Sub-Account for the purposes of determining Margin Requirements. Accordingly, “cross margin mode” will not allow different Sub-Accounts to benefit from a shared pool of Margin, and each Sub-Account will have its own independent Margin Requirements.4.5 We accept USDT and USDC stablecoins to satisfy Initial Margin and Maintenance Margin requirements on Futures contracts. You may be able to apply the value of such Digital Assets to satisfy Initial Margin and/or Maintenance Margin requirements on USDT-M Futures or USDC-M Futures if you have deposited Digital Assets other than USDT or USDC to your Futures Account. Digital Assets other than USDT or USDC that are used to satisfy Margin Requirements will receive a value haircut. We reserve the right to change the Digital Assets that are eligible as Margin for Futures contracts and/or applicable value haircuts and maximum transfer-in limit from time to time at our sole and absolute discretion. With respect to Coin-M Futures contracts, BYDFi accepts margin in the same cryptocurrency referenced in the relevant contract.4.6 Upon specific written instructions provided by user, we may transfer all or any part of the Margin held on your behalf in respect of any Futures Account to any other Account, or to utilize such Margin for any purposes as required by you with respect to any other Services offered by us which do not constitute Futures Trading Services.4.7 BYDFi will establish Margin Requirements in respect of Transactions which will be set out in the Futures Trading Rules. We may, in our sole and absolute discretion, with or without notice to you, adjust the Margin Requirements for any Futures Account and/or type of Transaction at any time and by any level, and may also stipulate that such Margin Requirements shall apply to existing positions as well as new positions in the Transactions affected by such change. Any written notice from BYDFi stating that any such circumstance has arisen shall be deemed to be a conclusive determination of that event. You acknowledge that we may, in certain market conditions, effect an immediate change in Margin Requirements and/or require additional Margin to be deposited by you immediately or within a specified period, and you hereby waive any right to object to such change or requirement. No prior Margin Requirements shall be binding on or set a precedent for BYDFi.4.8 In the event that BYDFi determines, at any time, that additional Margin is required with respect to a Transaction, you shall deposit such additional Margin immediately upon demand. Notwithstanding any such demand, we may at any time exercise our rights hereunder should your Margin Balance fall below the applicable required Maintenance Margin In making such determination in respect of the Margin provided for any Futures Account, BYDFi shall not be required to take into consideration Margin held by BYDFi for you in respect of any other Account.4.9 You acknowledge that Margin may be held and used to secure the performance of your obligations, as well as for such other purposes as the Applicable Laws may permit or stipulate for the relevant Transactions.4.10 All Margin shall be held by BYDFi as a continuing security granted by you and shall be subject to a general lien and right of set off in favor of BYDFi for any and all of your obligations, liabilities or monies whatsoever at any time now or hereafter owing, due, incurred or payable by you to BYDFi under this Agreement or otherwise, whether present or future, actual or contingent, solely or jointly or whether as principal or surety, and BYDFi may realise any of your Margin as provided for in this Agreement. Subject to our rights under this Agreement, BYDFi will not sell, transfer, loan, hypothecate, rehypothecate or pledge any Margin allocated to your Futures Account unless such sale, transfer, loan, hypothecation, rehypothecation or pledge has been instructed by you in writing, authorised under this Agreement, or compelled by a court of competent jurisdiction.4.11 You acknowledge and agree that no interest shall be paid by us on any type of Margin deposited by you and that we shall not have any liability for fluctuations in the fiat currency value of Margin allocated to and used in connection with your Futures Account. We shall at no time be required to redeliver to your property which is identical to such property delivered or otherwise transferred from you to BYDFi as Margin for the Futures Account. Any obligation on us to redeliver any property to you shall be satisfied if such property which is redelivered is of substantially the same kind and amount as the property delivered by you to BYDFi as Margin for the Futures Account, subject to adjustments for quantity and quality variations at the market price prevailing at the time of such delivery. You acknowledge and agree that any Margin delivered by you for the Futures Account will no longer constitute your property and shall not constitute a loan by you or a constructive trust in your favor when BYDFi uses the Margin for any purpose as set out in this Agreement.4.12 You shall at your own cost and at our request, execute and do all such deeds, acts and things as we may require from time to time for the purposes of this Agreement, including but not limited to perfecting our rights to the Margin provided by you.4.13 Subject to Applicable Law, BYDFi may deposit into its own general account or any other account, any of your Margin and may commingle your Margin with the Digital Assets, currencies and property of BYDFi or other clients of the Futures Trading Services.5. Margin Calls and Liquidation5.1 Digital Asset markets are open 24 hours a day, 7 days a week, and Margin Calls and Liquidations may occur at any time. You agree and acknowledge that the prices of Digital Assets are volatile and may experience sharp declines in value, from time to time, which could contribute to triggering Margin Calls and/or Liquidations.5.2 You agree and acknowledge that, without prejudice to the generality of this Clause 5 of this Agreement:(a) to allocate the required Initial Margin to your Futures Account before entering into any Transaction. You will not be permitted to enter into a Transaction in the event of failure to allocate.(b) to maintain, at all times, sufficient Maintenance Margin for outstanding Transactions. You acknowledge and agree that it is your sole responsibility to monitor the Margin Balance and applicable Margin Requirements of your Futures Account from time to time, particularly in (but not limited to) periods of high volatility, in order to avoid Liquidation. If your Margin Balance falls below the required level, you agree to transfer additional Margin to us whether or not a Margin Call has been made to restore to the required Maintenance Margin for the outstanding Transactions. The Initial Margin and Maintenance Margin requirements shall be set out on the Platform. We may amend the maximum leverage, Initial Margin and/or Maintenance Margin requirements with respect to Transactions from time to time in our sole and absolute discretion.(c) BYDFi may calculate the profit and loss of your open positions in Futures based on a proprietary model and that BYDFi has the sole discretion to choose and amend the specification of such proprietary model in order to reflect its view of the fair market price of the Futures at the relevant time;(d) if, with respect to open positions maintained in Futures, the Mark Price of the relevant Futures hits the Liquidation Price, BYDFi will begin to automatically close out open positions without notice as soon as market conditions allow until the first of the following occurs: (i) the Margin Balance of your Futures Account is equal to, or greater than, the required Maintenance Margin for all remaining open positions (after taking into account any realized losses and deductions for liquidation clearance fees); or (ii) all open positions have been terminated.In a liquidation, BYDFi will attempt to reduce the deficit between your Margin Balance and the required Maintenance Margin without fully liquidating a position. This is achieved by the issuance of an Immediate or Cancel order (an “IOCO”). A liquidation will result in all of your open Orders (in “cross margin mode”) and all of your open Orders in the same token (in “isolated margin mode”) being immediately canceled. BYDFi is not required to provide notice before commencing liquidation. You acknowledge and agree that a liquidation clearance fee (amount to be determined by BYDFi) will be charged on the amount liquidated pursuant to a liquidation.(e) In the event that, any portion of the IOCO is unfilled and is subsequently canceled, or if there is a negative balance on your Futures Account following a full liquidation of your open positions, you will be deemed to be a “bankrupt user”. If you are deemed to be a “bankrupt user”, we may take over your remaining open positions and offload such positions onto the market gradually to the extent possible.(f) To the extent that a “bankrupt user’s” positions are not accepted (due to, but not limited to, the existence of extreme market volatility), counterparty liquidation will occur and positions held by opposing users will be liquidated in accordance with a liquidation priority ranking. The effect of such liquidation priority ranking is that highly leveraged positions will tend to be closed out first.(g) All open positions of the Futures Account shall be marked-to-market daily, or at more frequent intervals as BYDFi may determine in its sole discretion. To avoid spikes and unnecessary liquidations during periods of high volatility, BYDFi uses Mark Price to determine the mark-to-market value of positions, to Unrealized P/L and the Liquidation Price.(h) Whilst the Margin Balance of your Futures Account takes into account the value of Digital Assets allocated as Margin to your Futures Account together with any Unrealized P/L and Unrealized P/L is relevant for determining Margin Calls, you shall not have any claim with respect to any Unrealized P/L and shall not be entitled to request the withdrawal of any Unrealized P/L. Any rewards or incentives to which you may be entitled from time to time with respect to Digital Assets in your Futures Account will be determined by reference to the value of the Digital Assets allocated to your Futures Account as Margin and will not take into account any Unrealized P/L included within your Margin Balance.5.3 BYDFi shall be entitled to make Margin Calls to you in respect of your Transactions, which will be made through the Platform, by email or other electronic means. Any Margin Call must be satisfied by transferring additional Margin from your Account(s) to your Futures Account. You are responsible for monitoring your Futures Account and for maintaining sufficient Margin at all times to satisfy applicable Margin Requirements, especially during volatile periods, regardless of whether or not a Margin Call has been made. Any failure to satisfy a Margin Call, or to otherwise maintain sufficient Margin in your Futures Account, may result in your positions being subject to liquidation and/or BYDFi exercising its rights under this Agreement. BYDFi shall have no liability to you or any third party in connection with any failure of BYDFi to make a Margin Call or any delay in the receipt by you of any Margin Call.6. Trading Bots6.1 BYDFi may offer access to certain trading tools which enable you to place Orders for the execution of Transactions by way of a pre-determined execution methodology (such tools “Trading Bots”).6.2 You acknowledge and agree that you shall be solely responsible for determining whether or not you wish to make use of any Trading Bot and for selecting an appropriate Trading Bot in light of your investment objectives and needs. You shall also be responsible for setting any parameters and/or applicable execution methodology to be applied by any Trading Bot which you have chosen and for ensuring that any such Trading Bot will be consistent with any limitations or conditions that may apply to your execution of any Transaction.6.3 We are not responsible for your choice of Trading Bot or for any selected parameters and/or execution methodology, regardless of whether such parameters were recommended or pre-populated on the Platform, and shall not be responsible for evaluating your goals in your selection or use of any Trading Bot. You acknowledge that your use of any Trading Bot shall be at your own risk and discretion. BYDFi does not guarantee the results of any Trading Bot and will not be liable to you for any loss which might arise from your use of any Trading Bot. You acknowledge that the output and offering of any Trading Bot and any parameters recommended in connection therewith do not constitute any investment advice or any recommendation from BYDFi to you, in each case relating to the use, appropriateness or suitability of any Transaction to be executed or of the applicable execution methodology. You acknowledge that your use of any Trading Bot may be limited by Applicable Law and that you shall not provide any Order to us pursuant to the use of any Trading Bot unless you have determined that such use is consistent with Applicable Law.6.4 If we determine that any use of a Trading Bot could have an impact on the market and/or adversely impact availability of liquidity across the relevant product, you acknowledge and agree that we may implement certain controls, which may include cancellation of Orders and/or Transactions resulting from the use of a Trading Bot and/or restricting the use and/or availability of any Trading Bot for the execution of any futures Orders and/or Transactions. You also acknowledge and agree that we may implement such controls if it determines that such controls are desirable to ensure compliance with Applicable Law, including in response to any regulatory request or restriction.7. Fees and Commissions7.1 You shall make payment for any outstanding amount owed to BYDFi when due or otherwise upon demand by BYDFi.7.2 You shall promptly pay all fees, commissions and/or other charges at such rates and in such manner as BYDFi may impose and stipulate from time to time with respect to the execution and/or performance of any Transaction or otherwise for the maintenance of your Futures Account or the provision of any service in connection with your Futures Account.7.3 BYDFi reserves the right from time to time in its sole and absolute discretion to change the rates of fees, commissions and charges or impose other fees, commissions and charges. Fees, commissions and other charges may be quoted on request, posted on the Platform or provided to you individually through notification via email or other forms of communication as BYDFi in its sole and absolute discretion may deem fit.7.4 All commissions, fees, charges or other amounts owed from you may be settled by BYDFi at its sole and absolute discretion on the day they fall due by debiting your Account with the relevant amount payable by you. If there are insufficient Digital Assets in your Account, you acknowledge that any amount due and payable from you hereunder is a debt immediately due and owing to BYDFi.7.5 Applicable trading fees may vary between different clients, products and Transactions and will depend on certain factors, including trading volumes. Subject to the satisfaction of certain criteria, we may provide trading fee discounts from time to time. All trading fees shall be applied at both the entry into and the close-out of a Transaction, unless otherwise notified.7.6 If you enter into a Perpetual Futures Contract, then you will, at each applicable Funding Time, either be required to pay or be entitled to receive a Funding Fee. As Perpetual Futures Contracts do not have a set expiry date and will subsist indefinitely unless they are liquidated, Funding Fees ensure that the price of the contract correlates with the prevailing spot price of the underlying instrument. In extreme market conditions, you acknowledge that it may be costly to maintain a long-term position in the market due to high Funding Fees. You will only be required to make, or be entitled to receive, Funding Fees in respect of open positions you hold in Perpetual Futures Contracts as at the applicable Funding Times. If you do not have an open position at a Funding Time, you will not be required to pay, or otherwise be entitled to receive, any Funding Fees with respect to such Funding Time.If you close your open positions prior to a Funding Time, you will not be required to pay or be entitled to receive any Funding Fees in relation to such positions. You acknowledge that the actual Funding Times may be subject to a deviation of up to 60 seconds from the specified Funding Times.7.7 BYDFi shall be entitled, in its sole and absolute discretion, to charge interest on any amount due to BYDFi at such rate, and calculated and/or compounded in such manner, as BYDFi may impose and determine from time to time. BYDFi may debit any Account in respect of such interest.7.8 All amounts owed to BYDFi shall be settled in such Digital Assets as solely determined by BYDFi from time to time and shall be free of any deduction or withholding. If you are required to effect such deduction or withholding, then the amount due to BYDFi shall be increased by such amount, which shall result in BYDFi receiving an amount equal to the amount BYDFi should have received in the absence of such deduction or withholding.7.9 You shall fully reimburse BYDFi for any applicable taxes, duties, disbursements, costs and/or other expenses incurred by BYDFi in connection with providing Futures Trading Services to you or otherwise in connection with your Futures Account. All interest, fees, commissions and other charges owed to BYDFi are exclusive of any applicable tax which shall be borne and separately charged to you.7.10 If, for any reason, BYDFi cannot effect payment or repayment in the particular Digital Asset in which payment or repayment is due, it may effect payment or repayment in an equivalent amount of another Digital Asset based on a rate of exchange solely determined by BYDFi (acting reasonably) at the relevant time.7.11 Without prejudice to any right of set-off under the Terms of Use or Applicable Law, you acknowledge and agree that we may set off all amounts of any nature, denominated in any Digital Asset or currency or otherwise and wherever arising which are due from you or to you in respect of the Futures Trading Services and/or any other Services. You acknowledge and agree that you will not be entitled to exercise any right of set-off or counterclaim against amounts due to or from BYDFi.8. Default and Termination8.1 The following events shall each constitute a “Default”:(a) your Margin Balance with respect to your Futures Account falls below the applicable Margin Requirements in the applicable Futures Trading Rules;(b) any representation, warranty, agreement or undertaking made by you whether under or in connection with this Agreement or otherwise, or any other material statement made by you in or in connection with the same is untrue, inaccurate, incomplete or misleading in any respect at the time when made by you or thereafter at any time becomes untrue, inaccurate, incomplete or misleading in any respect and you fail to inform BYDFi of the true position as soon as reasonably practicable;(c) you have failed to comply with or perform any of your obligations in this Agreement, whether in respect of your Futures Account, any Transaction or otherwise, or under the Futures Trading Rules and/or you have failed to comply with or perform any obligation under the Terms of Use;(d) you fail to promptly provide us with any documentation requested for the purposes of any: (i) KYC checks, including, without limitation, documentation required for the purposes of verifying your information such as identity, address, legal authority and/or (ii) credit checks, anti-money laundering requirements or any other internal assessments conducted by BYDFi and/or BYDFi determines that you have failed to successfully pass or otherwise satisfy any KYC checks, credit checks, anti-money laundering requirements or any other internal assessments;(e) if you are an individual, you become deceased or bankrupt, or you have commenced an action (or have any action commenced against you) to place you into bankruptcy or personal insolvency or you are otherwise unable to pay your debts as and when they fall due;(f) if you are acting on behalf of a partnership, any of the partners thereof has become deceased or bankrupt, or such partners have commenced an action (or have any action commenced against them) to place them into bankruptcy or personal insolvency or are otherwise unable to pay their debts as and when they fall due or if any action is commenced to dissolve the partnership;(g) if you are acting on behalf of a corporation, the corporation is unable to pay its debts as and when they fall due, or an action is commenced to place the corporation in insolvency, judicial management, receivership, administrative management, or any similar or analogous proceedings;(h) any investigation, claim, action or proceeding of any nature is commenced against you, you have breached Applicable Laws, or steps are taken by any person to enforce any security interest against you;(i) you convene a meeting of your creditors or propose or make any compromise or arrangement with, or any assignment for the benefit of, your creditors;(j) BYDFi has reasonable concerns in relation to your creditworthiness, financial status or the verification of your identity;(k) BYDFi is unable to contact you within 24 hours of attempting to establish any contact using reasonable means;(l) BYDFi determines, in good faith, that it should take any action in order to preserve its rights or interests under any Account or Futures Account or under its relationship with you;(m) BYDFi reasonably believes that any of the circumstances set out under hereinunder are likely to occur and/or that any action described in Clause 8.2 below is necessary, desirable or expedient to protect its interests or the interests of the other clients; or(n) a credible allegation of fraud, misconduct, embezzlement, money laundering, insider trading, market manipulation abuse or other material illegality, breach of regulation or impropriety is made against you (whether by BYDFi or a third party) or BYDFi otherwise reasonably believes that you have used the Futures Trading Services with improper intent, which BYDFi determines, acting in good faith and in a commercially reasonable manner, could reasonably result in reputational harm to BYDFi, compromise the integrity of the markets maintained by BYDFi and/or result in losses being sustained by other clients of BYDFi.8.2 Without prejudice to any other right of BYDFi hereunder or otherwise at law, in the event of a Default, BYDFi may immediately or any time thereafter (without prior notice) whilst such Default is continuing:(a) suspend, place restrictions on, cancel or terminate any Account, Futures Account, any services provided to you or prohibit you from opening any Account and/or Futures Account and/or accelerate any and all of your liabilities to BYDFi so that they shall become immediately due and payable;(b) liquidate, accelerate, and/or close out any outstanding Transaction by determining its value in good faith and in its absolute discretion as of the date of such liquidation, acceleration or close-out as soon as practicable thereafter;(c) at such times and in such manner as BYDFi may reasonably determine, sell or otherwise transfer any Digital Assets or other property which BYDFi may hold for you or which has been transferred to BYDFi by you and apply the proceeds to the discharge of your obligations, subject to BYDFi’s rights of set-off in accordance with this Agreement or otherwise under the Terms of Use or Applicable Laws;(d) vary the applicable Margin Requirement and/or liquidate or exercise its power to sell the Margin or part thereof at a price which we deem appropriate in the circumstances;(e) apply any amounts of whatsoever nature standing to your credit against any amounts owed by you, or generally to exercise our rights of set-off in accordance with this Agreement or otherwise under the Terms of Use or Applicable Laws;(f) demand any shortfall after the application of Clause 8.2(e) from you, or hold any excess pending full settlement of any other of your obligations, or pay any excess to you by way of any methods deemed appropriate by BYDFi;(g) restrict your ability to withdraw any Digital Assets from any Account;(h) do or omit to do anything which BYDFi reasonably believes to be necessary, desirable or expedient to protect BYDFi or its other clients; and/or(i) exercise such other authority and powers that may have been conferred upon BYDFi by this Agreement, the Futures Trading Rules and/or the Terms of Use.8.3 Without prejudice to Clause 8.2, in the event that BYDFi determines that you are in Default under Clause 8.1(n) of this Agreement, we reserve the right to unwind or reverse any Transactions, freeze any or all amounts allocated to User’s Futures Account, and/or deduct any amounts allocated to your Futures Account that relate to or arise out of any Transactions entered in connection with any of the circumstances referred to in Clause 8.1(n).8.4 To the extent permitted under Applicable Law, you will be responsible for any reasonable costs and expenses of collection of any unpaid deficiency in your Futures Account including, but not limited to, legal counsel’s fees incurred and payable or paid by BYDFi, and you shall be responsible for any other reasonable costs and expenses incurred by BYDFi in exercising any of its rights under this Clause 8 pursuant to any Default.9. Statements and Confirmations9.1 You shall verify all statements with respect to your Futures Account and all confirmations with respect to Transactions entered into from time to time as against your own records. Any and all objections by you shall not be valid unless accompanied by supporting evidence. If no objection is raised by you within 7 days of the date of the relevant statement or confirmation (or such other time period set out therein), such statement or confirmation shall (in the absence of Manifest Error or clear evidence to the contrary) be deemed conclusive and binding as against you, and you shall not be entitled to object thereto. Notwithstanding the foregoing, we may at any time in its sole discretion choose to rectify any error on any entry, statement or confirmation which has been proven to its satisfaction to be incorrect, and may demand immediate repayment from you of any Digital Assets erroneously transferred to you as a result of any such error. BYDFi does not make any representations or warranties regarding the availability, accessibility, accuracy, currency or completeness of any information contained in any statement or Confirmation provided by BYDFi.9.2 You shall immediately notify BYDFi if a statement or confirmation is not received by you within the usual time frames provided in the ordinary course of business or your use of the Services.9.3 Subject to the provisions of this Clause 9, a confirmation which does not accurately reflect the relevant Transaction entered into (i) does not affect the validity of the Transaction which the confirmation evidences; and (ii) where there is Manifest Error, does not entitle you to enforce whatever is inaccurately recorded in the confirmation.9.4 We reserve the right to void, cancel or reverse any Transaction involving or deriving from a Manifest Error or to amend the details of such Transaction to reflect what we reasonably consider to be the correct or fair details of such a Transaction.9.5 Without prejudice to the generality of the other terms in this Agreement, and in the absence of fraud or bad faith of BYDFi, BYDFi shall in no circumstances be liable to you for any Loss or demand of whatsoever nature which you may suffer or incur in connection with any Manifest Error howsoever arising, whether such Loss or demand is direct or indirect, special or consequential.10. Representations, Warranties, Agreements and Undertakings10.1 You represent, warrant, agree and/or undertake that:(a) you have full capacity and authority, and you have obtained and are in compliance with all necessary authorizations, consents, licenses or approvals (whether under Applicable Laws or otherwise) required to: (i) accept and agree to the terms of this Agreement, (ii) receive the Futures Trading Services, (iii) enter into Transactions, (iv) open, maintain and/or continue to maintain a Futures Account, (v) transfer Margin to BYDFi and (vi) issue Orders to BYDFi in connection therewith;(b) you have made your own independent decision to: (i) accept the terms of this Agreement, (ii) open and maintain a Futures Account, (iii) receive the Futures Trading Services, (iv) enter into Transactions from time to time and (v) determine that the Futures Trading Services and Transactions are suitable or appropriate for you or the entity for whom you are acting, based on your own judgment and/or advice from your advisers.(c) You are not relying on any communication (whether written or oral) from BYDFi: (i) as investment advice, (ii) as a recommendation to enter into any Transaction or (iii) as an assurance or guarantee of any expected results of a Transaction;(d) you have read and understood the applicable Futures Trading Rules and accept the conditions and limitations for each service available;(e) you are not: (i) an employee of any governmental or self-regulatory organization in any jurisdiction, including any exchange or a member firm thereof, (ii) engaged in the business of dealing, either as agent or principal, which prohibits you from establishing a relationship with BYDFi, or (iii) engaged in the business of dealing in any of the Digital Assets traded in connection with your Futures Account, and you shall, in each case, promptly notify BYDFi if you become so employed or engaged;(f) you do not reside in the prohibited countries as set out in Terms of Use, or in any other jurisdictions in which BYDFi has restricted the offering of any service provided under this Agreement;(g) unless you specifically notify BYDFi and BYDFi agrees, no person other than you has an interest in your Futures Account;(h) except with the express written consent of BYDFi, no person has or will have any security or other encumbrance over your Futures Account and/or any Digital Asset held in your Futures Account, other than any security or encumbrance created hereunder;(i) any Order placed or any other dealings with respect to your Futures Account is solely and exclusively based on your own judgement, independent appraisal and investigation into the risk associated with such Orders, as well as your independent determination of the Order being specifically suitable to you based on your own assessment of your financial resources, financial objectives and ability and willingness to take relevant risks;(j) BYDFi shall not be under any duty or obligation to inquire into the purpose or propriety of any Order and shall be under no obligation to accept or execute any Order;(k) any person(s) empowered to act on your behalf have been duly authorized;(l) you have complied and shall continue to comply with all Applicable Laws in all jurisdictions relevant to your Futures Account, any Transaction, or any service or facility provided or made available to you by BYDFi;(m) all information and/or documents provided by you in connection with the services contemplated under this Agreement are true, accurate, complete and not misleading in any and all respects, and nothing has been concealed from BYDFi which may have a material effect on BYDFi’s decision to provide or continue to provide any of the services under this Agreement; and(n) you shall not knowingly or recklessly permit the use of BYDFi’s services, facilities or membership in a manner which may, in the opinion of BYDFi, bring BYDFi into disrepute, impair the dignity or degrade the good name of BYDFi. You shall not knowingly or recklessly create or maintain or exacerbate manipulations (or attempted manipulations), corners (or attempted corners) or violate any Applicable Laws (or arrangements, provisions or directions made or given thereunder), or otherwise act in a manner which is substantially detrimental to the interests or welfare of BYDFi or any of its other users.10.2 The above representations, warranties, agreements and undertakings shall be deemed repeated whenever you place any Order with BYDFi, enter into any Transactions or establish a Futures Account with BYDFi.11. Indemnity11.1 In addition and without prejudice to any other right or remedy of BYDFi under Applicable Laws, the Terms of Use or otherwise, you shall at all times indemnify, keep indemnified, and hold BYDFi harmless from and against any and all Loss suffered or incurred by BYDFi arising whether directly or indirectly out of, in the course of or in connection with:(a) any Default or any failure by you to comply with any provision of this Agreement or Applicable Laws;(b) BYDFi acting in accordance with your Orders or in any manner permitted under this Agreement and/or the Terms of Use;(c) any changes in any Applicable Laws that impact the provision of the Futures Trading Services to you (or use thereof); and/or(d) any act or thing done or caused to be done by BYDFi in connection with or referable to this Agreement, the Terms of Use or your Futures Account.11.2 You shall further indemnify, keep indemnified and hold BYDFi harmless from any and all expenses, costs and legal fees on a full indemnity basis incurred, including but not limited to expenses, costs and legal fees incurred for producing records, and information, or payment made whether such payment is or is to be made in settlement of any proceedings or in connection with any ruling, judgement, order or award) by any of them in connection with any investigations or proceedings (whether legal, regulatory, arbitration or other proceedings brought against it in connection with Clauses 11.1(a) to 11.1(d) above. You shall provide any and all reasonable assistance in connection with such investigations or proceedings.12. Exclusions12.1 Futures trading is not suitable for everyone. You should examine your investment objectives, financial resources and risk tolerance to determine whether borrowing against your assets held is appropriate for you. You acknowledge that futures trading with respect to Digital Assets is a highly speculative activity involving highly leveraged and rapidly fluctuating markets. You further understand and accept the significant risks associated with the use of Margin and leverage and have determined that the use of Margin and/or leverage is consistent with your investment objectives. Despite such risks, you acknowledge, understand and agree that you are willing and able to assume the financial risks and other hazards of futures trading with respect to Digital Assets and agree that you will in no manner hold BYDFi responsible for Losses incurred by you under or in connection with this Agreement, the Futures Trading Rules, the Terms of Use or otherwise. You acknowledge that trading in Futures involves the potential for profit as well as the risk of losing substantially more than your initial capital. You do not own or have any rights to the underlying instruments, which include Digital Assets and any rewards or yields generated from such Digital Assets.12.2 In addition and without prejudice to any other right or remedy which BYDFi may have under this Agreement, the Futures Trading Rules, the Terms of Use, Applicable Laws or otherwise, so long as BYDFi acts in good faith, it shall not be liable to you in any respect for any Loss suffered by you, including, without limitation, any Loss resulting from default, insolvency or analogous proceedings of, or action or inaction by any intermediary (including wrongful or unlawful action or inaction) or howsoever otherwise suffered and/or incurred by you under or in connection with this Agreement, the Futures Trading Rules and/or the Terms of Use. BYDFi shall only be liable to you if BYDFi is determined by a court of competent jurisdiction to have been fraudulent or to have acted in wilful default.12.3 Without prejudice to the generality of the foregoing, BYDFi shall not in any event be liable to you for any indirect or consequential Loss, or for any loss of anticipated profits or any punitive damages.13. Technology Disclaimer13.1 To the extent that you may use third-party technology, web applications, application programming interfaces, software, software code, programs, protocols and/or other third-party resources (“Third Party Applications”) to provide connectivity to the Platform to place Orders, enter into and/or settle Transactions, or otherwise engage in the Futures Trading Services, you acknowledge and accept that you are solely responsible for and will bear all risks associated with the use of any Third Party Applications, including (but not limited to) any risks that such Third Party Applications may not function appropriately with the Platform and other risks associated with the compatibility of such Third Party Applications with the Platform. You acknowledge that any links to Third Party Applications to or from the Platform do not constitute any form of endorsement by BYDFi of any product, service, information or disclaimer presented on or made available through such Third Party Applications, and that BYDFi does not guarantee (or make any representations with respect to) the accuracy of the information presented on or provided through such Third Party Applications. You shall be solely responsible for your decision to use any Third Party Application and shall ensure that any such use is suitable for you in light of your investment objectives. If you suffer any loss in connection with your use of any Third Party Application, we will not be liable for such loss. In addition, you acknowledge that BYDFi has no control over the terms of use or privacy policies related to any Third Party Application, and you agree to ensure that you have carefully read and understood such terms and policies before using such Third Party Application.13.2 Unless expressly prohibited by Applicable Laws, you agree that no terms and conditions and warranties shall be implied by statute or common law in relation to the Platform including, but not limited to, merchantability, satisfactory quality, suitability or fitness for any particular purpose. You acknowledge that technical difficulties may arise in connection with the use of the Platform, and such difficulties may include, but are not limited to, malfunctions, failures, delays, hardware damages or software erosion. You acknowledge that such technical difficulties could be the result of hardware, software or communication link inadequacies or any other cause, and that such difficulties could result in possible economic and/or data loss. In the absence of fraud or wilful default of BYDFi, BYDFi will not be liable for any loss, cost, claim, demand, expense or damage including, without limitation, loss of profit, loss of revenue, loss of opportunity, consequential, unforeseeable, special or indirect damages or expenses which arise directly or indirectly in connection with your access and/or use of the Platform, in each case notwithstanding that BYDFi may have been advised that such loss, cost, claim, demand, expense or damage may be possible or reasonably foreseeable.13.3 You acknowledge that the Platform consists of certain trading systems, platforms and/or related software and technology (the “Trading Systems”) which enable, assist and/or facilitate you to place Orders, enter into and/or settle Transactions. You also acknowledge that such Trading Systems may be proprietary to BYDFi or may be licensed by BYDFi from third-party licensors (the “Third Party Licensors”) for access and/or use by you. In addition to the terms of this Agreement, you agree and undertake to comply with any and all terms and conditions as BYDFi and/or such Third Party Licensors may from time to time prescribe or stipulate to be applicable in connection with their provision and/or your access and/or use of such Trading Systems.13.4 You acknowledge that we may use or provide technology and/or electronic services, or make available technology and/or electronic services provided by third parties, in each case for your use in connection with the Futures Trading Services and any Order placed or Transaction made by you. Such technology and electronic services may include, but are not limited to, trading technology, web applications, application programming interfaces, software, software code, programs, protocols and displays (collectively, the “Technology”) for trading, analyzing trades and markets, constructing automated trading systems and/or to assist or facilitate the provision, availability or connectivity of Platform provided or made available by BYDFi for access or use. BYDFi provides the Technology on an “as is” basis, without any warranties of merchantability, fitness for a particular purpose, or other express or implied warranties. You acknowledge and agree that none of BYDFi, any Third Party Licensors and any other third-party Technology providers shall be responsible for the operation or performance of any automated trading system developed with Technology or for any errors, malfunctions or breakdown of, or inability to access, any Technology or Platform or for any delays or interruptions in transmission of orders due to breakdown, excessive call volume or failure of transmission or communication equipment on the internet or otherwise, including, but not limited to, communications problems, computer software or hardware breakdowns, malfunctioning errors, any and all problems or glitches associated with computer problems or any other technical cause or causes.13.5 You acknowledge that certain databases, programs, protocols, displays and manuals which may form part of the Technology (the “Proprietary Information”) are proprietary to and unique to BYDFi, Third Party Licensors or (as the case may be) third-party Technology providers, as to which copyright, patent, or other proprietary rights may be held by BYDFi, such Third Party Licensors, third-party Technology providers or third parties from whom such Third Party Licensors or third-party Technology providers have licensed or otherwise acquired such rights. You agree to take or cause to be taken any and all necessary precautions to maintain the confidentiality of such Proprietary Information, to comply with all copyright, trademark, trade secret, patent and other laws necessary to protect all rights in the Proprietary Information as advised by BYDFi and agree not to remove, conceal or obliterate any copyright or other proprietary notice, such Third Party Licensors or such other third parties’ ownership, as included in the Technology.13.6 You acknowledge, accept and agree that BYDFi, any Third Party Licensors or any other third-party Technology providers and their respective directors, officers, employees, agents, contractors and/or subcontractors shall not be held liable for any Loss, damage, cost or expense (including the loss of data) suffered or incurred by you as a result, arising out of or in connection with any errors, malfunctions, breakdowns, inability to access, faults, interruptions or delays in the Technology, or Platform or out of any inaccuracies, errors or omissions in the information contained in the Technology or Trading Systems as supplied to, or made available for access and use by, you, provided however that this limitation does not apply to any loss, cost or damage suffered or incurred by you caused by fraud or wilful default of BYDFi in the performance of its duties imposed by this Agreement or applicable law. Each of BYDFi, such Third Party Licensors and such third-party Technology providers makes no warranties, conditions, guarantees or representations as to satisfactory quality, fitness for a particular purpose or other warranties, conditions, guarantees or representations, whether express or implied, in law or in fact, oral or in writing, in each case in connection with any Technology or Platform, except as expressly stated in the terms of this Agreement. Under no circumstances shall BYDFi, such Third Party Licensors and/or such third-party Technology providers be liable for any loss, damage, cost or expense of any nature whatsoever incurred or suffered by you of an indirect, incidental, special or consequential nature (including without limitation any economic loss or other loss of turnover, profits, business or goodwill) arising from or in connection with the provision of, or the availability to you of, any Technology or Platform.13.7 Without prejudice to the generality of the foregoing, you agree not to bring any legal action, whether in tort, contract or otherwise, against BYDFi, any Third Party Licensors or any other third-party Technology providers in connection with any failure by BYDFi, such Third Party Licensors or such other third-party Technology provider to perform or otherwise settle a Transaction entered by you using Technology.13.8 You acknowledge that use of the Platform may require compatible hardware or devices, internet access and web browser that includes 128-bit encryption, and BYDFi software (the latest version thereof which is subject to periodic updates), and that the performance of the Platform may be affected by the performance of these factors. You acknowledge that it is not recommended for the Platform to be accessed with a touchscreen device on a web browser for the purposes of Futures trading. You agree that meeting these requirements is your responsibility. BYDFi shall not be liable for any losses resulting directly or indirectly from the incompatible hardware or devices, personal network congestion, network delay, poor network environment and outdated version of software. We reserve the right to limit the number of Futures Accounts that may be created from a particular device and the number of devices associated with a particular Futures Account.14. Other Provisions14.1 You acknowledge and agree that if BYDFi determines that you have not undertaken any activity with respect to your Futures Account for a period of 30 calendar days or more, your Futures Account shall be considered dormant and we shall have the right to close your Futures Account on notice to you.14.2 You acknowledge that a dormant Futures Account which has been closed cannot be reactivated, and that you will need to register for a new Futures Account if you wish to continue your use of the Futures Trading Services. If your Futures Account is closed, you acknowledge and agree as follows: (i) you shall no longer be entitled to access or use the Futures Trading Services; (ii) you expressly authorize BYDFi to deduct any outstanding amounts owed to BYDFi, including without limitation any applicable Trading Fees, Funding Fees and other amounts; and (iii) after the satisfaction of any amounts due to BYDFi, if any amounts remain to the credit of your Futures Account, such amounts will be credited to the balance of the account you hold with BYDFi for the purposes of spot trading activity in Digital Assets, and any withdrawal of such amounts shall be subject to the Terms of Use.14.3 This Agreement may, at BYDFi’s sole and absolute discretion, be translated into a language other than the English language. Any such translation shall be for your convenience only and the English text shall prevail in the event of any ambiguity, discrepancy or omission as between the English text and any translated text.14.4 No delay or omission by us in exercising any right or remedy under this Agreement will operate as a waiver of the future exercise of that right or remedy or of any other rights or remedies under this Agreement. The rights and remedies provided in the Terms of Use are cumulative and not exclusive of any rights or remedies provided by Applicable Law.14.5 If, at any time, any clause or sub-clause of the Terms of Use is or becomes illegal, invalid, or unenforceable in any respect, neither the legality, validity or enforceability of the remaining clauses or sub-clauses will in any way be affected or impaired.14.6 We will not be liable for any delay or failure to perform as required by this Agreement to the extent the delay or failure is caused by a Force Majeure Event.14.7 You may not assign or transfer any of your rights or obligations under this Agreement without the prior written consent of BYDFi, which may, in some cases, require additional information to be provided or enhanced due diligence to be performed. However, BYDFi may assign or transfer any of its rights or obligations under this Agreement at any time to anyone else, including, without limitation, in connection with any merger, acquisition, or other corporate reorganization involving BYDFi.14.8 This Agreement and all of its clauses and sub-clauses are for the sole and exclusive benefit of the parties to this Agreement and their successors and permitted assigns.
